France’s wireless communications surveillance loophole

This case at the French Constitutional Council put an end to the loophole which, since 1991, had been exempting all wireless communications surveillance of legal safeguards. Data Rights members contributed to the legal challenge.

Priority preliminary ruling request (QPC) on wireless communications surveillance to the French Council of State

The QPC is a French Constitutional Law procedure allowing persons involved in a pending case to ask the court they are before to suspend the proceedings and pass on an overarching question the Constitutional Council to assess the constitutionality of laws relating to the case at hand. Here the QPC was made possible as part of the pending case we had started before the French Council of State on the Decrees of the Intelligence Law reform of 2015.

Indeed, during the intelligence regulation reform of 2015 the Parliament chose to maintain the “wireless exception” introduced in French law in 1991. At the time supposed to cover military communications, the rise of mobile communications and wireless networks made this provision totally obsolete, grossly disproportionate and source of abuse by the police and intelligence services (as in the case of the fadettes of Le Monde, where phone bills of journalists were intercepted).

The notion of “wireless communications” might not be clear for everybody, and it is useful to provide a few examples. It might concern, for instance, all information sent:

- Between a mobile phone and its relay antenna (GSM/3G/4G/5G);

- Between a WiFi hotspot and a computer, smartphone or tablet;

- By a laptop using a 3G or 4G dongle;

- Between two Bluetooth devices (wireless microphones, etc);

- Between a cordless phone and its station;

- Between two ham radio practitioners or two walkie-talkies, etc.;

- By users of Satellite, WiMax, WiFi etc.;

- Between an instant pay card and its station;

- By a GPS beacon;

- Between an NFC chip (which you find in credit cards, or various other cards) and the reader.

Cases N^ers: QPC 2016-590, 394922, 394924, 394925, 397844, 397851

These cases were gathering non-profit Internet service providers French Data Network, FDN Federation, Igwan.net and the Quadrature du Net organisation, together with the Spinosi & Sureau law firm.

QPC Brief for the Council pdf

Brief to answer to the French government pdf

QPC transmission to the French Constitutional Council

Based on our briefs the French Council of State concluded there were indeed doubts on the consitutionality of the provision on wireless communications. The Council of State therefore transmitted our question to the Constitutional Council.

First observations brief pdf

Secondes observations brief pdf

Repeal of the intelligence loophole, deemed unconstitutional

The Constitutional Council declares article 24 of the Intelligence Law contrary to the Declaration of Human and Civil Rights of 1789. It notes that the “wireless exception” allows the collection of personal data and the interception of communications and that these intelligence measures are not subject “to any substantive or procedural conditions”and limited by “no guarantee".

This “manifestly disproportionate interference with the right to respect for private life and the secrecy of correspondence” is contrary to Article 2 of the Declaration of 1789. That being said, the Council considers that “public authorities should not be deprived of any possibility of monitoring wireless transmissions” and therefore postponed the effect of its decision to more than a year.

Entry into force of the repeal of article 24 of the Intelligence Law.